Nafr High Court
Case Details
1 ANURADHA TIWARI Digitally signed by ANURADHA TIWARI Date: 2025.06.27 10:29:38 +0530 2025:CGHC:28227-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR WPCR No. 126 of 2024 1 - Ashish Agarawal S/o Kedarnath Agarwal, Aged About 36 Years R/o Ward No. 09, Basna, Thana- Basna, District- Mahasamund (C.G.) 2 - Amit Agarwal S/o Kedarnath Agarwal, Aged About 34 Years R/o Ward No. 09, Gurudwara Mohalla, Basna, Thana Basna, District- Mahasamund (C.G.) versus ... Petitioners 1 - State of Chhattisgarh Through S.H.O., P.S. -Basna, District- Mahasamund (C.G.) 2 - Manmeet Saluja S/o Jashwant Singh Saluja, Aged About 30 Years R/o Village Tikrapara Basna, District-Mahasamund (C.G.) 3 - Rinki Kaur W/o Navjot Singh Saluja, Aged About 28 Years R/o Ward No. 13, Basna, Thana- Basna, District- Mahasamund (C.G.) 4 - Abhishek Kesari S/o J.P. Kirat, Aged About 37 Years Sub Divisional Officer, Saraipali, District Mahasamund (C.G.) 5 - Ransai Miri S/o Dhaniram Miri, Aged About 44 Years Assistant Sub Inspector, P.S.- Basna, District- Mahasamund (C.G.) 6 - Ashish Vasne, Ti, Saraipali, District- Mahasamund (C.G.) 7 - Kumari Chandrakar, Ti, Basna, District-Mahasamund (C.G.) ... Respondents (Cause-title taken from Case Information System) For Petitioners : Mr. Awadh Tripathi, Advocate For State : Mr. Sangharsh Pandey, Government Advocate 2 Hon'ble Shri Ramesh Sinha, Chief Justice Hon'ble Shri Bibhu Datta Guru , Judge Order on Board Per Ramesh Sinha, Chief Justice 26.06 .2025 1
Legal Reasoning
judgment rendered by this Court in WPCR No.176/2021 (Deepak Tripathi v. State of Chhattisgarh) decided on 07.02.2024 to buttress his submissions. 8 On the other hand, learned State Counsel opposes the submissions advanced by learned counsel for the petitioners and submits that from a perusal of the FIR, it is apparent that the petitioners' had assaulted complainant Manmeet Singh Saluja/respondent No.2 and his sister-in-law Smt. Rinki Kaur/respondent No.3 and had also torn her clothes. However, in the FIR, it was not specifically mentioned as to whose clothes were torn therefore, offence under Section 341, 294, 323, 506, 34 of IPC was registered at Police Station Basna District Mahasamund (CG). During the course of investigation, MLC of respondent No.3 was done and mild swelling on right cheek, redness over chest and linear abrasion over left hand was found substantiating the complaint made against the petitioner. Further torn Kurta of respondent No.3 was recovered. After thorough investigation, offence under Section 354 of IPC was added during investigation and thereafter, charge sheet has been filed. He further submits that after the registration of the FIR, check list as provided under section 41 (1)(b)(ii) was prepared and considering 8 that offence was registered against the petitioners in the past, it was deemed proper to arrest the petitioners. Therefore, arrest was made on 06.05.2023 and the petitioners were immediately produced before the concerned Magistrate. The learned Magistrate after perusal of the check list was pleaded to deny remand of the petitioners and they were enlarged on bail on the same date i.e. 06.05.2023. It has been contended that the action of police authorities was in accordance with paragraph 11.2 and 11.3 of the judgment of Hon'ble Supreme Court in the case of Arnesh Kumar (supra). It is further contended that the authority had forwarded the duly filled check list along with reasons and materials necessitating arrest of the petitioners at the time of producing the accused before the Magistrate for further detention. However, the Magistrate did not find the reasons mentioned in the check list adequate and therefore, enlarged the petitioners on bail. It has been argued that the notice under section 41-A of the Cr.P.C. is served to the petitionres in light of para 11.5 and 11.6 of the judgment of Arnesh Kumar (supra). It has been further argued that earlier also, offence was registered against the petitioners in connection with Crime No.16/2019 at Police Station Basna District Mahasamund (C.G.) for the offence punishable under Section 498-A read with 34 of IPC and the apprehension against the petitioners was not ill founded and subsequently, the petitioners have been found to be involved in crime against women and offence has been registered against them under 9 Sections 294, 323, 506, 34 of IPC at the behest of one Leena Banjare as well as preventing action under Sections 107/116 and 110 of Cr.P.C. have been taken against the petitioners. As such, the instant petition deserves to be dismissed as the same is bereft of merits. 9 We have heard learned counsel for the parties and perused the
Arguments
Heard Mr. Awadh Tripathi, learned counsel for the petitioners. Also heard Mr. Sangharsh Pandey, learned Government Advocate, appearing for the State. 2 By way of this petition, the petitioners have prayed for following reliefs:- “1) That, the petitioner has been implicated u/s. 354 of IPC is not made out against the petitioner and it should be removed from the challan/final report, in the interest of Justice. 2) That, this Hon'ble Court may kindly be pleased to issue writ of Mandamus commanding the respondent No. 1 to initiate a department enquiry against respondent no. 4 to 7 for non compliance of directions issued by the Hon'ble Supreme Court. 3) That, this Hon'ble Court may kindly be further pleased to issue a writ to Mandamus as to punish respondent's for committing contempt of Hon'ble Supreme Court's order as directed by the Hon'ble Supreme Court in the matter of Arnesh Kumar. 4) Any other relief which this Hon'ble Court 3 may deem fit and proper may also be passed in favor of the petitioner.” 3 Brief facts of the case, in a nutshell, are that, the complainant/respondent No.2 had previous enmity with the petitioners and the complainant has some criminal record. On the date of incident i.e. on 30.04.2023, the said complainant in front of Punjab Boot House called the petitioner No.1 and started quarrel with the petitioner No.1 and run away from the spot, so, that on the same date, petitioner No.1 has made a compliant before the police and the complainant has lodged a false and frivolous compliant against the petitioners, in which he has made certain allegation for outraging modesty of his sister-in-law, though she was not present at the time of incident and the petitioner has provided the video clip to the police officer, but the police has not registered the FIR on the report of petitioners and in contrary registered an offence under Sections 341, 294, 323, 506, 34 of the Indian Penal Code, 1860 (for short, “IPC”). Henceforth, petitioner No.1 made effort for registration of FIR against the complainant and after due diligence of Superintendent of Police dated 05.05.2023, offence was registered against the complainant. 4 During the course of investigation, when police has not found any material available against the petitioner under Section 354 of IPC, then on 06.05.2023 place of incident has been changed where there is no chance for getting the video clipping and recorded the 4 statement of sister of the complainant and with the ulterior motive registered an offence under Section 354 of IPC. The complainant has initially stated that some hot talks were exchanged in front of Punjab Boot House, then the complainant got back home and when he was coming back with his sister-in-law, at that juncture the quarrel took place and during the course of quarrel, the petitioner is alleged to outrage the modesty by knowing about the change the place of incident as he came to know that the petitioners have taken out the video clip of the aforesaid spot, therefore, the complainant choose a place where there was no CCTV surveillanceThe respondent No. 4 and 5 have just to humiliate lodged the FIR on the same day and did not lodge counter FIR of the petitioners. The petitioners have lodged a counter compliant, but respondents No.4 and 5 have not lodged the FIR, upon which the petitioners have written a compliant to Superintendent of Police of the concerned authority, upon which the respondent authority has lodged an FIR on dated 05.05.2023 and the petitioners were called by respondent No. 4 to the police station to sign, upon which they were arrested without providing notice under Section 41 of the Code of Criminal Procedure, 1973 (for short, ‘Cr.P.C.’). 5 Respondents No. 4 to 7 who have not initially registered the case against the respondent No. 2 under some pressure subsequently registered the case on 05.05.2023 as they got annoyed from the petitioners and just to humiliate the petitioner, have added Section 5 354 of IPC on 06.05.2023 and called the petitioner on 06.05.2023. In the present case, the police party who has joined the hands with the respondent No. 2 and complainant and for the very purpose to harass and humiliate the petitioner not only arrest them without following the procedure prescribed under Section 41 (2) of Cr.P.C., but also were handcuffed publicly and took them to hospital for Mulahija by bare foot and the respondent Mo. 2 just to tarnish the image of the petitioners made a video and viral it on internet and also when the petitioners were before Judicial Magistrate First Class, the respondent No.4 to 7 objected the bail and made a request for 14 days as remand, but the learned Judicial Magistrate First Class, looking to the nature of allegation, was kind enough to grant bail to the petitioners. 6 The complainant took the video of the arrest of the petitioners and made the video public and viraled it just to harass and humiliate the petitioners and to tarnish the image of the petitioners in the eyes of society and the respondent authority took equal part to support the complainant in this regard. 7 Learned counsel for the petitioners submits that the charge sheet filed against the petitioners is totally contrary to law as the relevant provisions of the Cr.P.C. have not been complied with and the same is contrary to the judgment rendered by the Hon’ble Supreme Court in the matter of Arvind Yadav v. Ramesh Kumar, (2003) 6 SCC 144. He further submits that the petitioners 6 have been implicated under Section 354 of IPC in the charge sheet only when the respondent authorities have lodged a cross FIR against the complainant. It has been contended that as per statement of the the victim recorded under Section 161 of Cr.P.C., she has stated that the place of incident was Bus stand near market, but as per her statement which was taken on 01.08.2023, she has clearly stated that the place of incident was Government Hospital which clearly shows that she is goofing up with the story. It has also been proved by the video which was taken from the video camera available near bus stand that the victim was not at all present and the fight happened between the petitioner No. 1 and complainant and it is also clear from the video that petitioner No. 2 was not present at the place of incident. It has been contended that respondents No. 4 to 7 did not comply with the directions issued by the Hon'ble Supreme Court in the matter of Arnesh kumar v. State of Bihar, (2014) 8 SCC 273 and without complying with the provisions of Section 41 of Cr.P.C., arrested the petitioners and hence, they are liable to punished as well as departmental enquiry must be initiated against them. It has been further contended that the person accused of offence punishable with imprisonment for a term which may be less than seven years or which may extend to seven years with or without fine, cannot be arrested by the police officer and if arrested, they should be served a with a notice under Section 41A of Cr.P.C. and both the conditions were not followed by respondent authorities, as such, 7 the petition be allowed and departmental enquiry be initiated against respondents No.4 to 7 for non-compliance of the directions issued by the Hon’ble Supreme Court in the matter of Arnesh Kumar (supra). Reliance has been placed upon the
Decision
documents annexed with the writ petition. 10 Section 41 of the Cr.P.C. reads as under :- “41. When police may arrest without warrant.-(1) Any police officer may without an order from a Magistrate and without a warrant, arrest any person- (a) who commits, in the presence of a police officer, a cognizable offence; (b) against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists that he has committed a cognizable offence punishable with imprisonment for a term which may be less than seven years or which may extent to seven years whether with or without fine, if the following conditions are satisfied, namely:- (i) the police officer has reason to believe on the basis of such complaint, information, or suspicion that such person has committed the said offence; 10 (ii) the police officer is satisfied that such arrest is necessary- (a) to prevent such person from committing any further offence; or (b) for proper investigation of the offence; or (c) to prevent such person from causing the evidence of the offence to disappear or tampering with such evidence in any manner; or (d) to prevent such person from making any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to the police officer; or (e) as unless such person is arrested, his presence in the Court whenever required cannot be ensured; and the police officer shall record while making such arrest, his reasons in writing; [provided that a police officer shall, in all cases, where the arrest of a person is not required under the provisions of the sub- section; record the reasons in writing for not making the arrest.] (ba) against whom credible information has been received that he has committed a cognizable offence punishable without imprisonment for a term which may extent to more than seven years whether with or without fine or with death sentence and the 11 police officer has reason to believe on the basis of that information that such person has committed the said offence;], (c) who has been proclaimed as an offender either under this Code or by order of the State Government; or (d) in whose possession anything is found which may reasonably be suspected to be stolen property and who may reasonably be suspected of having committed an offence with reference to such thing; or (e) who obstructs a police officer while in the execution of his duty, or who has escaped, or attempts to escape, from lawful custody; or (f) who is reasonably suspected of being a deserter from any of the Armed Forces of the Union; or (g) who has been concerned in, or against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists, of his having been concerned in, any act committed at any place out of India which, if committed in India, would have been punishable as an offence, and for which he is, under any law relating to extradition, or otherwise, liable to be apprehended or detained in custody in India; or (h) who, being a released convict, commits a breach of any rule made under sub- section 12 (5) of section 356; or (i) for whose arrest any requisition, whether written or oral, has been received from another police officer, provided that the requisition specifies the person to be arrested and the offence or other cause for which the arrest is to be made and it appears therefrom that the person might lawfully be arrested without a warrant by the officer who issued the requisition. [(2) Subject to the provisions of section 42, no person concerned in a non cognizable offence or against whom a complaint has been made or credible information has been received or reasonable suspicion exists of his having so concerned, shall be arrested except under a warrant or order of a Magistrate.]” 11 From bare perusal of Section 41 of the Cr.P.C., it is apparent that the Police can exercise power given in the above section as preventive measure and this Section does not include penal provision. It is well settled principle of law that life and liberty of a citizen guaranteed under Article 21 of the Constitution of India includes life with dignity and liberty with dignity. Liberty must mean freedom from humiliation and unnecessary/false/mischievous arrest, indignities at the hand of the authority would include police excesses in a given case. 12 In the matter of State of Haryana v. Bhajanlal, AIR 1992 13 Supreme Court 604, the Hon'ble Apex Court has observed and held that in following category of cases the High Court may in exercise of powers under Article 226 under section 482 of Cr.P.C. may interfere in proceedings relating to cognizable offences to prevent abuse of the process of any Court or otherwise to secure the ends of justice and power should be exercised sparingly and that too in the rarest of rare cases:- “A) Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. B) Where the allegation in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers under S. 156(1) of the Code except under an order of a Magistrate within the purview of S. 155(2) of the Code. C) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. D) Where the allegations in the F.I.R. do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by the police office 14 without an order of Magistrate as contemplated under S. 155(2) of the Code. E) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for against the accused. F) Where there is express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and /or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. G) Where a criminal proceeding is manifestly attended with malafide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.” 13 In the matter of Arnesh Kumar (supra), Hon’ble Supreme Court has given several directions, which held as under :- “11. Our endeavour in this judgment is to ensure that police officers do not arrest accused unnecessarily and Magistrate do not authorise detention casually and mechanically. In order to ensure what we have observed above, we give the following 15 direction:- 11.1 All the State Governments to instruct its police officers not to automatically arrest when a case under Section 498-A of the IPC is registered but to satisfy themselves about the necessity for arrest under the parameters laid down above flowing from Section 41, Cr.PC; 11.2 All police officers be provided with a check list containing specified sub- clauses under Section 41(1)(b)(ii); 11.3 The police officer shall forward the check list duly filed and furnish the reasons and materials which necessitated the arrest, while forwarding/producing the accused before the Magistrate for further detention; 11.4 The Magistrate while authorising detention of the accused shall peruse the report furnished by the police officer in terms aforesaid and only after recording its satisfaction, the Magistrate will authorise detention; 11.5 The decision not to arrest an accused, be forwarded to the Magistrate within two weeks from the date of the institution of the case with a copy to the Magistrate which may be extended by the Superintendent of police of the district for the reasons to be recorded in writing; 16 11.6 Notice of appearance in terms of Section 41A of Cr.PC be served on the accused within two weeks from the date of institution of the case, which may be extended by the Superintendent of Police of the District for the reasons to be recorded in writing; 11.7 Failure to comply with the directions aforesaid shall apart from rendering the police officers concerned liable for departmental action, they shall also be liable to be punished for contempt of court to be instituted before High Court having territorial jurisdiction. 11.8 Authorising detention without recording reasons as aforesaid by the judicial Magistrate concerned shall be liable for departmental action by the appropriate High Court.” 14 From perusal of the FIR as well as the charge-sheet, it transpires that the petitioners had assaulted complainant Manmeet Singh Saluja/respondent No.2 and his sister-in-law Smt. Rinki Kaur/respondent No.3 and therefore, offence under Section 341, 294, 323, 506, 34 of IPC was registered at Police Station Basna District Mahasamund (CG). During the course of investigation, MLC of respondent No.3 was done and mild swelling on right cheek, redness over chest and linear abrasion over left hand was found substantiating the complaint made against the petitioner. Further torn Kurta of respondent No.3 was recovered. After 17 thorough investigation, offence under Section 354 of IPC was added during investigation and thereafter, charge sheet has been filed. It further transpires from the record thatafter the registration of the FIR, check list as provided under section 41 (1)(b)(ii) was prepared and considering that offence was registered against the petitioners in the past, they were arrested on 06.05.2023 and thereafter, they were immediately produced before the concerned Magistrate, who on the very same day, enlarged the petitioners on bail. It has been further reflected that the directions issued by the Hon’ble Supreme Court in the matter of Arnesh Kumar (supra) has been complied with in the present case. 15 Taking into consideration the material available on record, we find that the respondent authorities have proceeded in accordance with the judgment passed in the matter of Arnesh Kumar (supra) without any malice or bias and the check list prepared under section 41(1)(b)(ii) of Cr.P.C. was duly forwarded to the concerned Magistrate. The learned Magistrate did not find sufficient reasons to extend detention of the petitioners, therefore enlarged on bail. 16 For the foregoing reasons, it is evident that after the registration of the FIR and collection of evidence during the course of investigation, the charge sheet has been prepared and filed accordingly before the competent Court. The fact of assault is established from the MLC of respondent No.3, which was conducted on the very same date and subsequently, her clothes 18 were also recovered. Statements of respondent No.2, respondent No.3 and other eye-witnesses were also recorded in order to check the veracity of the complaint. The respondent No.3 had also made a categorical statement under Section 164 of the Cr.P.C., which forms part of the charge sheet. 17 Considering the matter in its entirety as well as appreciating the submissions of the learned counsel for the parties, we are of the considered opinion that no interference is called for by this Court in its extraordinary power under Article 226 of the Constitution of India for grant of any relief to the petitioners. 18 The petition lacks merit and is, accordingly, dismissed. Sd/- Sd/- (Bibhu Datta Guru) (Ramesh Sinha) Chief Justice Judge Anu